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Sexual Offences, Capacity and Disability – A Call for Rights-Based Law Reform

This post is inspired by the excellent RTE 1 documentary ‘Somebody to Love’ which aired last night and provided a sensitive and thought-provoking exploration of disability, relationships and sexuality. If you haven’t already watched the programme you can catch it on the RTE player here. At several points during the programme the participants mentioned the law which criminalises sexual activity with a person with an intellectual disability – which is worth explaining in further detail here.

with a person who is mentally impaired (other than a person to whom he is married or to whom he believes with reasonable cause he is married) shall be guilty of an offence …

(3) In any proceedings under this section it shall be a defence for the accused to show that at the time of the alleged commission of the offence he did not know and had no reason to suspect that the person in respect of whom he is charged was mentally impaired.

(4) Proceedings against a person charged with an offence under this section shall not be taken except by or with the consent of the Director of Public Prosecutions.

(5) In this section “mentally impaired” means suffering from a disorder of the mind, whether through mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding against serious exploitation.

This offence has almost never been successfully prosecuted in the courts, to the best of my knowledge. The most recent case in which it was raised was People (DPP) v XY, but since the case involved only oral sex this did not come within the definition of ‘sexual intercourse’ set out in section 5. As a result, we have no interpretation from the courts on what capability to live an independent life or to guard oneself against serious exploitation might mean.

The flaws in this legal provision have been well-documented – the fact that marriage is a defence to this offence, but consent is not, for example, and the higher burden it places on people with disabilities to demonstrate that they are capable of independent living and protecting themselves against exploitation – a standard which non-disabled people are not expected to meet before engaging in lawful sexual activity.

The Law Reform Commission has in its 2013 Report recommended the repeal of this provision and its replacement with a new suite of offences to mirror the general sexual offences legislation (e.g. rape, rape under section 4, sexual assault, aggravated sexual assault, etc.). However, the Commission recommend that these new criminal offences will differ from the mainstream criminal law on in one key respect – that a core definition of each new offence will be that the individual ‘lacked mental capacity’ to consent to the relevant sexual activity. The proposed approach to assessing an individual’s ‘mental capacity’ to consent is what is known as the ‘functional test’ – which essentially involves the person demonstrating that they can understand and appreciate the information required to make a decision, use and weigh that information to come to a decision, understand the nature and consequences of the decision, and communicate their decision to third parties.

While I agree that section 5 should be repealed, I feel strongly that the imposition of a functional test for capacity to consent to sex in our criminal law will remain a barrier to people with disabilities being able to freely express their sexuality. If new offences are required, I would propose the introduction of a disability-neutral offence of an abuse of a position of power – which would address the particularly problematic issue of the abuse and exploitation of people with disabilities by those charged with their care. This suggestion was included in a submission made by the Centre for Disability Law and Policy to the Law Reform Commission, but was not the approach ultimately adopted by the Commission in its final report.

The case law in England and Wales on capacity to consent to sex demonstrates that a wide variation in approaches to the functional test can be taken – and the level of knowledge and understanding an individual has to have to engage in lawful sexual activity seems to vary quite significantly – from simply an understanding of the physical nature of sex and the possible consequences (including pregnancy and STIs), to more complex issues such as emotional and even moral considerations. Again, since the law does not impose such a burden on non-disabled people who have reached the age of consent to demonstrate their understanding of the consequences of sexual activity, I feel strongly that this is a form of discrimination imposed on people with disabilities – and those with intellectual and other cognitive disabilities in particular.

The UN Committee on the Rights of Persons with Disabilities in its Draft General Comment on Article 12 has acknowledged the discriminatory and disproportionate nature of the functional test of mental capacity and has furthermore stated that an individual’s mental capacity cannot be used as a justification for restricting her legal capacity and the exercise of her legal rights – including the free expression of sexuality. The Committee stated with particular regard to women with disabilities that they “are often denied control of their reproductive health and decision-making, the assumption being that they are not capable of consenting to sex.”

What ‘Somebody to Love’ so powerfully demonstrated is that people with all kinds of disabilities and with none have the same desires for intimacy and relationships and should have equal opportunities to give their free and informed consent to sex. While sexual offences law will always be needed to criminalise those who engage in non-consensual sexual activity, the primacy of consent should ensure that the general sexual offences law can apply equally to people with disabilities – without the imposition of further barriers such as a functional test of capacity to consent to sex, or the introduction of specialized offences such as sexual intercourse with a person who ‘lacks capacity to consent.’